Appellant Donald Stewart Wilson seeks reversal of his
convictions on one count of murder, Ind. Code § 35-42-1-1, and two

counts of attempted murder, Ind. Code §§ 35-42-1-1 and 35-41-5-1.See footnote
1
Wilson claims that double jeopardy barred his retrial, that
the court wrongly refused various instructions on lesser included
offenses, and that it erroneously gave an instruction referring to
the jury as the "moral conscience of our society." We affirm.

Statement of Facts

Shortly after midnight on the morning of May 27, 1994, Wilson
drove to the Keg Liquor Lounge in Clarksville. His wife, Judith
Bowles Wilson (Judy), from whom a divorce was pending, was employed
at the Keg and working that night. (R. at 15.) Wilson was aware
his wife was seeing someone. (R. at 1467.) While standing outside
the Keg, Wilson engaged in a brief conversation with Charles Wise,
an employee at the liquor store next to the Keg. Wise recalled
Wilson saying, "looks like lover is here tonight." (R. at 1103,
1113.) Wise testified that he knew Wilson was referring to Antonio
Rodriguez, Judy's boyfriend, and that Rodriguez was inside the bar.
(R. at 1113-14.)

Following that conversation, Wilson walked into the Keg
carrying a Ruger .357 Magnum handgun. Wilson observed his

estranged wife speaking to Rodriguez, and twice demanded to see her
outside. (R. at 1194.) After seeing Rodriguez make some sudden
movements, (R. at 1685), Wilson shot at Rodriguez at least once,
striking him in the left forearm. (R. at 15, 1196.) As Rodriguez
fell to the ground and crawled behind the bar, Judy, who was
already behind the bar, ran towards the kitchen. (R. at 15, 1199.)
Wilson then turned and fired two shots in Judy's direction. (Id.)

Another patron who was in the bar at the time, Jack Bierly,
later told police he believed Wilson actually fired two shots at
Rodriguez. (R. at 15.) Bierly also observed Wilson raise and aim
his gun in the direction of Judy. (R. at 1235.) At that point,
Bierly got up and ran out the front door of the bar. He heard more
shots fired inside the bar as he ran. (R. at 1236.) Wilson
followed Bierly outside. (Id.) Bierly heard Wilson yelling at him
to stop running. (Id.) Bierly testified that he then turned and
saw Wilson pointing the .357 Magnum at him. (Id.) Bierly drew his
own revolver and shot at Wilson five times. (Id.) Wilson fired
twice in the direction of Bierly, though Wilson contends that the
discharges were accidental. (R. at 15; Appellant's Br. at 27.)
Bierly was not hit by these shots. Wilson sustained multiple
gunshot wounds from Bierly's shots before he fled to the car he had
driven, parked in an adjacent lot. (R. at 15.)

Police found Wilson collapsed next to a car in a lot adjoining
the Keg. (R. at 14.) He had been shot in the stomach, chest, and

right pinky finger. (R. at 1042-1043, 1038.) Inside the lounge,
they found Judy Bowles Wilson dead from a gunshot wound to the
head. (R. at 15.) A bullet had entered her left temple and exited
the back of her skull. (R. at 1064.) Police also found the injured
Rodriguez. (R. at 14.)

The police searched the car next to which Wilson had been
found. (R. at 916.) The car belonged to an employee of the company
where Wilson was a manager. (R. at 910.) Inside the car, they found
one of Wilson's business cards. (R. at 930.) They also found a box
of .357 caliber ammunition, (R. at 925), a shotgun, (R. at 922),
and a box of shotgun shells, (id.). None of these items belonged
to the owner of the car, nor had he given permission for Wilson to
borrow the car or put the guns and ammunition in it. (R. at 911-
13.)

Wilson was transported from the scene to the hospital and
remained there for surgery and follow-up care. On June 3, police
arrested Wilson and charged him with the murder of Judy Bowles
Wilson, the attempted murder of Rodriguez and Bierly, and carrying
a handgun without a license. (R. at 12-13.)

I. Wilson's Double Jeopardy Claim

Wilson claims he was subjected to double jeopardy when he was
retried following a mistrial. Because the motion for mistrial was
necessitated by "prosecutorial misconduct," Wilson says, his
retrial should have been barred.

A. Events Surrounding Wilson's Mistrial

Before the first trial, the defense moved to suppress all the
statements Wilson made on the night of the shooting, including
those to investigating detectives in the ambulance and at the
hospital. (R. at 43.)
This effort was unsuccessful in either
trial.

During the course of the first trial, the State questioned
Detective Carl Durbin. En route to the hospital, Wilson told
Durbin that while he was in the parking lot of the Keg, another
male had approached him and shot him. (R. at 323.) The direct
examination reads as follows:
A: I asked Mr. Wilson I'd like to talk to him and
went ahead and Mirandized him. He did agree that
he would talk back to me.
Q: So he could communicate with you, correct?
A: Yes, he could.
Q: And during the course of his, the trip between the
scene that he was located and the hospital, did
you have the opportunity to discuss this case with
Mr. Wilson?
A: Yes, I did.
Q: What did he advise you?
A: Well, in route to Humana Hospital, U of L Hospital,

after I Mirandized him, I asked Mr. Wilson what had
happened at the Keg Liquors. He said that he had,
he was approached by an unknown male outside of the
parking lot at the Keg where he had been shot. The
subject stated, Mr. Wilson stated that he did not
know the person who had shot him. After that
statement, I asked him had there been an argument
prior to this, you know, prior to him being shot.
He refused to---
[Defense Counsel]: Objection. Could we approach?
(R. at 693-94.)

Wilson objected to Detective Durbin's testimony and
subsequently moved for a mistrial. He contended that Durbin's
statement "he refused---" violated the holding in Doyle v. Ohio,
426 U.S. 610 (1976), that post-Miranda silence may not be used
against a defendant. After hearing arguments, the trial court
overruled the objection and denied the motion for mistrial. (R. at
713.) The court did, however, tell the prosecutor not to make any
further references to Wilson's assertion of Miranda rights.

After a brief recess and another witness, the State called
Detective Edward McCutcheon to the stand. (R. at 741.) While at
the hospital, Wilson told McCutcheon that he had gone to a bar and
been ambushed by a stranger. (R. at 350.) The relevant portion of
that testimony reads as follows:
Q: Did you at anytime during your investigation meet with
a person identified as Donald Wilson?
A: Yes.
Q: When was that?
A: At the University Hospital.
. . . .
Q: During the course of this meeting, what did you
personally do?
A: I went to the University Hospital in order to get a
statement from Mr. Wilson. I went to Mr. Wilson's room
at the University Hospital, and there was a guard
posted at his door. I identified myself to the guard

at the door, explained to him why I was there, and then
went, proceeded into the room to talk to Mr. Wilson.
Q: When you went into the room, describe to the
Jury how Mr. Wilson physically appeared.
A: He was sitting in a chair next to his bed
reading a book.
Q: What day was this?
A: I don't recall. Several days after the
incident.
Q: Okay. Did you then have the opportunity to
converse with Mr. Wilson in any way?
A: Yes, I identified myself to him, explained why
I was there, and that I would like to take a
statement from him, and as I was doing that, he
was talking to me. He was asking me who had
shot him and if that person was in jail. At
that time, I told him that before I could talk
to him, I needed him to sign a rights waiver,
and I proceeded to get that out of the file,
and he continued to talk, and I handed him the
rights waiver and asked him to sign it, and at
that time, he said that he needed to talk to an
attorney, he thought it would be best if he
talked to an attorney.
(R. at 788-90.)

Wilson objected, and after the court heard further testimony
outside the presence of the jury to clarify Detective McCutcheon's
statements, Wilson moved for a mistrial on Doyle grounds, that the
State may not comment on a defendant's exercise of his right to
remain silent.See footnote
2 (R. at 791, 793-94.) The court granted Wilson's
motion for mistrial and set the cause for retrial. (R. at 795-99.)

Wilson filed a motion to dismiss, claiming double jeopardy.

Wilson argued at a hearing, as he argues now, that his retrial
should have been barred because his motion for mistrial was
necessitated by prosecutorial error and/or misconduct, which was
inspired by the State's desire to retry the case and improve its
chances of winning. (R. at 143-51, 806-27.) The prosecutor
vigorously denied any intent to create a mistrial through his
interrogation of Detective McCutcheon:
I was nine witnesses into my case after I got off this
Police Officer, McCutcheon, who this Court has heard
testify on numerous occasions. This man was about to
throw up on direct. He couldn't even identify pictures
of the scene when I was asking him that. This man is
scared to death when he testifies. He's a good Officer.
I did not in any way attempt, nor would I have any reason
to try to seek a mistrial. The day that I can't look the
Court in the eye or the Jury in the eye, I have the
ability to dismiss the case. I've tried over 300 cases
in my career. I have never deliberately tried to
mistrial a case.
(R. at 811-13.)

At the close of the hearing, Judge Donahue indicated he did
not find any deliberate prosecutorial misconduct, stating:

I don't believe from my standpoint as the 13th Juror
listening to the testimony in this particular case that
what occurred here was any intention of goading the
Defense into moving for a mistrial, to put the Defendant
in a position where he was forced to move for a mistrial.
I have observed Officer McCutcheon, again, as a trier of
fact, many times from this particular bench and I know
how awkward he is in testifying, how intimidated he
always seems to be when he testifies, particularly, he
was intimidated in this instance . . . but I don't think
the conduct here was intentional at all. It was not
geared to goad the Defense into any kind of position . .
. .

(R. at 816-18.) Judge Donahue also entered a number of findings,

including:

There is no evidence or inference which would indicate
that the State of Indiana benefitted in any manner by the
mistrial, or intended in any respect to provoke or cause
the mistrial.
(R. at 157.)

On retrial, a jury found Wilson guilty on all four counts
charged. The trial court sentenced Wilson to sixty years for
murder, forty years for each count of attempted murder, and one
year for carrying a handgun without a license, all to run
concurrently. (R. at 308-309.) This appeal followed.

B. Analysis of Wilson's Double Jeopardy Claim

The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall "be subject for the same offense to be twice
put in jeopardy of life or limb." Similarly, the Indiana
Constitution provides that "[n]o person shall be put in jeopardy
twice for the same offense." Ind. Const. art. I, § 14.See footnote
3

If a defendant moves for a mistrial, the defendant forfeits
the right to raise a double jeopardy claim in subsequent
proceedings, unless the motion for mistrial was necessitated by
governmental conduct "intended to goad the defendant into moving
for a mistrial." Willoughby v. State, 660 N.E.2d 570, 576 (Ind.
1996) (quoting Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). As

Willoughby and other cases point out, the key inquiry on appeal
concerns the subjective intent of the prosecuting authority. See
United States v. Beasley, 479 F.2d 1124, 1126-27 (5th Cir. 1973);
Woods v. State, 484 N.E.2d 3, 5 (Ind. 1985); Ried v. State, 610
N.E.2d 275, 279 (Ind. Ct. App. 1993). In Willoughby we stated, "To
determine whether a second trial is barred after a defendant's
motion for a mistrial, we must examine whether the prosecutor
brought about the mistrial with the intent to cause termination of
the trial. If the State acted with intent to force the defendant
into moving for a mistrial, the prohibition against double jeopardy
bars a second prosecution." 660 N.E.2d 570, 576.

Wilson urges us to find that the prosecutor's questioning of
Detectives Durbin and McCutcheon constituted conduct intended to
goad the defense into moving for a mistrial. Our review of the
record leads us to the conclusion that the prosecutor did not
intend to bring about the mistrial.

We begin by noting that the trial court had refused Wilson's
requests to suppress Wilson's statements on the night of the
shooting. Thus, it was proper for the prosecutor to be questioning
the police officers about the conversations they each had with
Wilson following the shooting.

The court overruled the objection to Officer Durbin's
statements, but nonetheless warned the prosecutor to proceed

carefully to avoid references to Wilson's assertion of Miranda
rights. When later questioning Detective McCutcheon, the
prosecutor asked, "Did you then have the opportunity to converse
with Mr. Wilson in any way?" (R. at 790.) In response, Detective
McCutcheon began to describe the conversation that occurred, and
then mentioned Wilson's request for an attorney. (Id.)

The trial court found in its Order that Detective McCutcheon's
comments about counsel "were not directly responsive to questions
posed by the State." (R. at 157.) Certainly some of what
Detective McCutcheon said in response to the prosecutor's question
was admissible testimony. The prosecutor's questions, while open-
ended, do not appear to us to be solicitations for the detectives
to comment on Wilson's request for an attorney, nor do they seem
deliberately calculated to create the need for a mistrial.

The cases dealing with the question of prosecutorial intent
give significant weight to trial court determinations of whether
the prosecutor acted deliberately to cause a mistrial. In
Willoughby, we noted that "the trial court specifically found that
'the state didn't intentionally cause a mistrial.'" 660 N.E.2d at
576. In Woods v. State, this Court also gave weight to the trial
court's finding as to the prosecutor's intent. 484 N.E.2d at 6.
In Oregon v. Kennedy, the U.S. Supreme Court found similar findings
of fact not only persuasive but determinative. The Court stated:

Since the Oregon trial court found, and the Oregon Court
of Appeals accepted, that the prosecutorial conduct
culminating in the termination of the first trial was not
so intended by the prosecutor, that is the end of the
matter for purposes of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution."
456 U.S. at 679.

The trial court in Wilson's case explicitly found "There is no
evidence or inference which would indicate that the State of
Indiana . . . intended in any respect to provoke or cause the
mistrial." (R. at 157.) Though we are inclined to think that such
trial court determinations are not conclusive for purposes of state
appellate review, we do regard them as very persuasive. The record
supports the trial judge's findings that the mistrial was not
caused by deliberate conduct on the part of the prosecutor.See footnote
4

Therefore, because retrial is barred only when a prosecutor
intends to cause a mistrial, and because the record supports the
trial court's conclusion that the prosecutor did not intend to
force Wilson to move for a mistrial, we hold that Wilson's retrial
did not violate the proscription against double jeopardy.
Willoughby, 660 N.E.2d at 577.

II. Wilson's Tendered Instructions on
Lesser Included Offenses

At his second trial, Wilson tendered instructions on several
lesser included offenses. He now asserts error in the trial
court's refusal of some of those tendered instructions.

This Court set forth a three-part test for determining when a
trial court should instruct on a lesser included offense in the
case of Wright v. State, 658 N.E.2d 563 (Ind. 1995). Initially,
the court must determine whether the lesser offense is either
"inherently" or "factually" included in the offense charged. Id.
at 566-67; Champlain v. State, 681 N.E.2d 696, 699 (Ind. 1997). If
the court concludes that the lesser offense is included in the one
charged, then the inquiry hinges on whether a serious evidentiary
dispute exists as to which offense was committed by the defendant,
given all the evidence presented by both parties. Id.

In this case, the court held a hearing on Wilson's tendered
instructions. (R. at 1830.) Wilson argued that he was entitled to
the lesser included instructions, as the evidence presented at
trial supported the giving of the instructions. (R. at 1846.) The
court considered the Wright case, and specifically read the case
citation into the record. (R. at 1852-53.) The court stated,
Now I've considered the case law submitted by the Defense
on these concepts of lesser-included offenses and to be
quite frank, I can't see how lesser-included offenses are
applicable to this particular case. It comes in two
tracks, as you know from reading that particular case,

number one, did the State, in drafting its Information,
somehow include wording that one could follow that
includes Criminal Recklessness and Battery? Now I'm
speaking of the attempted murder charges of both Bierly
and Rodriguez, does that track, and then secondly, even
if it does track, were the facts in the case such that it
would justify giving Instructions regarding lesser-
included offenses and I find that that's not the case
given the evidence in this case . . . .
(R. at 1830-40.)

The record indicates that the trial judge did the type of
factual analysis contemplated by Wright and Champlain, and
determined that no serious evidentiary dispute existed warranting
lesser included offense instructions. Because it is apparent that
the court refused the instructions on these grounds, we review his
ruling only for an abuse of discretion. Id.

1983). Because voluntary manslaughter is an inherently included
offense to murder, step one of the Wright test is satisfied, and we
thus turn to step three, the serious evidentiary dispute. Wright,
658 N.E.2d at 567. It is at this stage that Wilson fails.

Wilson correctly contends that the record indicates he was
angry about the relationship his wife was having. (Appellant's Br.
at 20.) Anger standing alone is not sufficient to support an
instruction on sudden heat. Matheny v. State, 583 N.E.2d 1202,
1205 (Ind. 1992). Wilson says that actually seeing his wife with
her boyfriend Rodriguez at the bar enraged him to the level of
sudden heat. (Appellant's Br. at 20.) Wilson further argues that
the reason such an observation angered him to the level of sudden
heat was because he suffered from Post-Traumatic Stress Disorder,
which caused flashbacks during stressful situations. Therein lies
the rub. Wilson contends that he suffers from an emotional
disorder which causes him to react to stressful situations more
harshly than other people react to those situations, such that he
is not the ordinary man referred to in the definition of sudden

heat adopted by this Court. An otherwise normally stressful
encounter does not suddenly inflame sudden heat, mitigating murder,
simply because a person suffers from a psychological disorder which
gives him a "hair trigger."

The record belies Wilson's argument that he acted under sudden
heat. As noted above, Wilson knew about Judy's relationship with
Rodriguez. At least four days before the shooting, Wilson had a
conversation with Judy's brother, Donald O'Brien, in which he told
O'Brien that if he ever caught Judy with her boyfriend, he would
kill them. (R. at 1468.) Also before the shooting, Wilson engaged
in several conversations with a former employee of his named Samuel
Dryden. (R. at 1443-44.) Dryden testified at trial that during
the course of those conversations, Wilson stated that in our
criminal justice system, "it was pretty easy to get out of things,"
(id.), and "if it ever came down to it and he'd killed somebody, he
would use the Vietnam flashback syndrome," (id.). Finally, the
weapons and ammunition found in the car Wilson had taken without
permission cuts against a finding of sudden heat. (R. at 910-30.)
Considered cumulatively, this evidence showed a degree of
premeditation sufficient to sustain the trial court's determination
that no serious evidentiary dispute existed on sudden heat. The
court properly refused Wilson's tendered instructions on voluntary
manslaughter.

B. Wilson's Reckless Homicide Instructions

Wilson tendered an instruction on reckless homicide, Ind. Code
Ann. § 35-42-1-5 (West 1986). The only distinguishing feature in
the elements of murder and reckless homicide is the mens rea
required of each offense. Wright, 658 N.E.2d at 567. Reckless
homicide is an inherently included offense of murder. Id. at 567.
We thus turn again to step three of the Wright analysis.

Under step three, Wilson argues, based solely on his assertion
of the insanity defense, that his intent was in dispute.
(Appellant's Br. at 22.) We find Wilson's argument misplaced.
This Court has held that
a trial court does not err when it refuses to instruct
the jury as to a lesser-included offense in a prosecution
for murder where the defense of insanity is used to
disprove intent to commit the greater offense, and thus
would not be compatible with the inference of guilt of a
lesser-included offense.

Matheny v. State, 583 N.E.2d 1202, 1206 (Ind. 1992) (citing Rowe v.
State, 539 N.E.2d 474, 477 (Ind. 1989)). While Wilson would be
entitled to a lesser included instruction if a serious evidentiary
dispute existed about the level of his mens rea, his interposition
of the insanity offense does not by itself raise such a dispute.
Any dispute raised by the insanity defense concerns whether a
defendant had any culpable intent at all. The "serious evidentiary
dispute" called for by Wright is a dispute over which offense a

defendant may have committed, the lesser or the greater. Because
a successful insanity defense would make Wilson nonculpable for any
offenses he may have committed, the insanity defense cannot be the
mechanism to demonstrate dispute entitling him to a lesser included
instruction. See Gonzales v. State, 642 N.E.2d 216, 216-17 (Ind.
1994); Matheny, 583 N.E.2d at 1206; Rowe, 539 N.E.2d at 477.
Because the insanity defense is the sole cause proffered by Wilson
as to why a serious evidentiary dispute existed between murder and
reckless homicide, and that argument is misplaced, we conclude the
trial court correctly refused Wilson's instructions on reckless
homicide.See footnote
5

C. Wilson's Battery Instructions

With regard to Count II, the attempted murder of Rodriguez,
Wilson tendered instructions on battery. The trial court rejected
them. Battery may be a lesser included offense of attempted murder
if the charging information alleges a factual physical
transgression against the victim so as to satisfy the "touching"
element of battery. Leon v. State, 525 N.E.2d 331, 332 (Ind.
1988). The charging information in the present case reads:

DONALD STEWART WILSON did attempt to commit the crime of
Murder, to-wit: Knowingly or intentionally killing
another human being, and did so by knowingly or
intentionally pointing and firing a Ruger .357 Magnum
handgun at the person of Antonio Rodriguez, striking him
in his left forearm, said conduct constituting a
substantial step toward commission of the crime of Murder
upon Antonio Rodriguez, all with the intent to kill
Antonio Rodriguez.

(R. at 12 (emphasis added).) The charge clearly alleges a touching
of Rodriguez, and so battery is a lesser included offense in this
instance. The question thus becomes whether the evidence warrants
an instruction on the lesser included offense, or whether there is
"serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense, and if, in view
of this dispute, a jury could conclude that the lesser offense was
committed but not the greater . . . ." Wright, 658 N.E.2d at 567.

Again, the distinguishing element between battery and
attempted murder is intent. Compare Ind. Code Ann. §§ 35-41-1-1,
35-42-5-1 (West Supp. 1997) with Ind. Code Ann. § 35-42-2-1 (West
Supp. 1997). Wilson contends that one reason his intent was in
dispute was his assertion of the insanity defense. This argument
fails for reasons we described above. Wilson argues further,
however, that evidence was presented calling into question whether
his intent was to kill or simply to batter Rodriguez. (Appellant's
Br. at 27.) We thus examine the evidence to see if "there is a
serious evidentiary dispute about what [Wilson] intended to do--
kill or batter." Lynch v. State, 571 N.E.2d 537, 539 (Ind. 1991).

Our review of the record reveals no evidence that Wilson
intended only to wound Rodriguez, other than his assertions to that
effect. To the contrary, this Court has repeatedly stated that the
use of a deadly weapon in a manner likely to cause death or great
bodily harm is sufficient to show the requisite intent to kill.
See, e.g., Shelton v. State, 602 N.E.2d 1017, 1022 (Ind. 1992);
Elliott v. State, 528 N.E.2d 87, 89 (Ind. 1988). Wilson shot a
.357 Magnum handgun at Rodriguez from across the bar. (R. at 15.)
Such an act constitutes the "use of a deadly weapon in a manner
likely to cause death or great bodily harm." Harper, 523 N.E.2d at
1391. Wilson's assertion that when he pointed and fired a .357
Magnum handgun at Rodriguez from across a bar he intended only a
"rude touching," defies credulity. Ind. Code Ann. § 35-42-2-1
(West Supp. 1997); cf., Lynch, 571 N.E.2d at 539 (Shepard, C.J.,
dissenting). The trial court did not abuse its discretion when it
refused the instructions.

D. Wilson's Attempted Battery Instructions

Wilson tendered instructions on attempted battery for Count
III, the attempted murder of Bierly, which the trial court
rejected. Indiana courts have not yet addressed the issue of
whether attempted battery may be a lesser included offense of

attempted murder. We now conclude that it may be a factually
included offense under the second step of Wright.See footnote
6

We have previously held that battery is a lesser included
offense of attempted murder when the charging instrument alleges a
touching. Leon, 525 N.E.2d at 332. Similarly, attempted battery
may be a lesser included offense of attempted murder when the
charge reveals an attempted touching, as was the case here. The
charging instrument here alleged:
DONALD STEWART WILSON did attempt to commit the crime of
Murder, to-wit: Knowingly or intentionally killing

another human being, and did so by knowingly or
intentionally pointing and firing a Ruger .357 Magnum
handgun at the person of Jack W. Bierly II, said conduct
constituting a substantial step toward commission of the
crime of Murder . . . .

(R. at 12 (emphasis added).) Therefore, we conclude that when
there is an attempted touching alleged, attempted battery is a
lesser included offense of attempted murder. In such cases, the
analysis hinges on whether a substantial evidentiary dispute exists
as to whether a defendant tried to kill or batter. Wilson's
arguments about why he was entitled to instructions on attempted
battery fail at this stage.

Other than pointing to his insanity defense, Wilson highlights
his argument that the gun discharged accidentally after being
struck by a bullet fired by Bierly as support for a serious
evidentiary dispute. As with the insanity defense, however, a
contention of accidental discharge seeks to rebut any and all
intent on the part of Wilson either to kill or batter Bierly. The
dispute contemplated by Wright concerns which offense Wilson
intended to commit, attempted murder or attempted battery.
Accordingly, we find no serious evidentiary dispute raised by
Wilson's contention of accidental discharge.

Wilson's final contention about attempted battery amounts to:
even if he did fire the gun at Bierly intentionally, he did not
intend to kill him. (Appellant's Br. at 27.)
According to the
probable cause affidavit and the testimony of Jack Bierly, Wilson

shot Bierly with a .357 at a distance between ten and twenty-five
feet. (R. at 15, 1236.)
Given the evidence, the trial court did
not abuse its discretion when it determined that no serious
evidentiary dispute existed from which "a jury could conclude that
the lesser offense was committed but not the greater." Wright, 658
N.E.2d at 567.

E. Wilson's Criminal Recklessness Instructions

Wilson tendered instructions on criminal recklessness as a
lesser included offense of the attempted murders, Counts II and
III. The trial court rejected the instructions. Indiana courts
have repeatedly held that criminal recklessness is not an
inherently lesser included offense of attempted murder. Goolsby v.
State, 517 N.E.2d 54, 62 (Ind. 1987); Flowers v. State, 481 N.E.2d
100, 104 (Ind. 1985). Further, as stated above, Count II of the
charging instrument in this case read:
DONALD STEWART WILSON did attempt to commit the crime of
Murder, to-wit: Knowingly or intentionally killing
another human being, and did so by knowingly or
intentionally pointing and firing a Ruger .357 Magnum
handgun at the person of Antonio Rodriguez, striking him
in his left forearm, said conduct constituting a
substantial step toward commission of the crime of Murder
upon Antonio Rodriguez, all with the intent to kill
Antonio Rodriguez.

(R. at 12.) Count III of the charging instrument mirrored Count II
of the charging instrument in all relevant respects. (See id.) As
this Court has previously stated in a similar situation, "[i]t is
clear that no element of reckless behavior was included in this

charge." See Humes v. State, 426 N.E.2d 379, 382 (Ind. 1981).See footnote
7
According to Wright, "If the alleged lesser included offense is
neither inherently nor factually included in the crime charged,
then the trial court should not give a requested instruction on the
alleged lesser included offense." 658 N.E.2d at 567. Therefore,
trial court properly refused Wilson's tendered instructions on
criminal recklessness.

III. The "Moral Conscience of Our Society" Instruction

The trial court accepted and gave the following instruction
tendered by the State:
You are instructed that in doing your duty as a juror you
may call upon all of your experiences in life in
determining the evidence. There is nothing mysterious or
fanciful about the criminal justice system in this
country and it is presumed that you, the jury, will not
check your common sense at the Courtroom door but will
use such common sense in determining the guilt or
innocence of the Defendant herein.
You are further instructed that in determining the
criminal responsibility of the Defendant, if any, that
you are the moral conscience of our society and must take
into account all of the facts and circumstances in this
case in order to determine the Defendant's guilt or
innocence.

(R. at 193 (emphasis added).) Wilson objected to this instruction
and now claims error on the grounds that the instruction was "an

unconstitutional appeal to the community conscience." (R. at 1844;
Appellant's Br. at 31.)

In Griffin, we disapproved the further use of an instruction
telling the jury that a defendant should not be "acquitted
erroneously" because "[b]y acquittal of the guilty, a contempt of
the law is aroused among the criminal classes and the safeguards of
society are weakened." 644 N.E.2d at 564. The Court disapproved
future use of the instruction "because it risks distracting the
jury by its speculation on the sociological impact of erroneous
verdicts." Id. The instruction at issue here hardly runs that
risk. Instead, it reminds jurors of their special role in the
system of justice using language we employ even in the most serious
cases of all. Roark v. State, 644 N.E.2d 565, 570 (Ind. 1994)
(stating that the jury's recommendation in capital cases represents
the "conscience of the community").

In light of Cox and Roark, we hold that the trial court
properly overruled Wilson's objection to the instruction.

Conclusion

For the aforementioned reasons, we affirm.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.

Footnote: 1
Wilson was also convicted of carrying a handgun without a license,
Ind. Code § 35-47-2-1. He does not appeal that conviction. Footnote: 2
See Doyle, 426 U.S. at 619 (holding that exercise of the right to
remain silent after a Miranda warning has been given cannot be used to impeach
a defendant); Wainwright v. Greenfield, 474 U.S. 284, 292 (1986)(holding that
defendant's post-Miranda warning request for an attorney cannot be used as
evidence of sanity)
; Lynch v. State, 632 N.E.2d 341, 343-44 (Ind.
1994)(holding that admission of evidence that defendant asked not to be
questioned without an attorney was reversible error)
.Footnote: 3
Wilson makes no particular argument concerning the Indiana
Constitution, so we treat his claim as a matter of Fifth Amendment law.Footnote: 4
At the hearing on the motion to dismiss on the grounds of double
jeopardy, Wilson's own defense counsel did not even argue that the mistrial
was intentionally caused by the prosecutor. There, the defense stated, "We're
not saying that it was deliberate misconduct or deliberate bad faith on the
part of the Prosecutor," (R. at 810), and "we're not saying it was bad faith
but it was error nonetheless," (R. at 814).Footnote: 5
On the issue of Wilson's tendered reckless homicide instruction,
because the sole cause of dispute proffered to us by Wilson on whether he
intended to commit murder or reckless homicide was his insanity defense, our
analysis on that particular issue actually does end with Matheny and Rowe.
Because we acknowledge a defendant's right to make alternative defenses,
however, and we find that Wilson did so, we must look at the evidence
presented by both parties and perform the full analysis set forth in Wright to
resolve Wilson's claims on other tendered instructions.
Footnote: 6
Our decision that attempted battery may be a lesser included offense
of attempted murder may allow defendants like Wilson to satisfy the second
prong of the Wright test, and thus get them to the third. That may not
ultimately be beneficial to defendants like Wilson, however, as it seems
unlikely that trial courts will conclude that such a defendant is entitled to
an instruction on attempted battery under Wright's step three. To do so, a
trial court would have to conclude that a serious evidentiary dispute existed
as to whether a defendant attempted to kill or simply commit a "rude touching"
when the defendant fired a handgun at someone from a short distance. Footnote: 7
In Humes, the charging instrument read:
On or about the 13th day of December [. . .] Humes did attempt to
commit the crime of murder by knowingly and intentionally shooting
a loaded firearm at and against the body of Jerry Shake, which
conduct constituted a substantial step toward the commission of
said crime of murder[.]
426 N.E.2d at 382.Footnote: 8
The instruction at issue in Cox read: "You are further instructed that
in determining the criminal responsibility of the Defendant herein, if any,
that you are the moral conscience of our society and must take into account
all the facts and circumstances in this case to determine the Defendant's
guilt or innocence." 475 N.E.2d at 668. The Court found that this instruction
comported with our notions of what "the law" means, and amounted to nothing
more than a general admonition to the jury to do its duty. Id. at 669.